US: Public health experts and politicians support advocacy to modernise Iowa’s HIV law

Activism to modernise the unscientific, unjust and stigmatising HIV-specific criminal statute in Iowa is heating up.  Last month, the Iowa HIV Community Planning Group voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalisation statute.

Next Monday, October 15th in the state capital, Des Moines, there will be another of a series of planned CHAIN/Sero Project community forums highlighting these efforts. All Iowa legislators within a 30 mile radius of Des Moines have been invited and Iowa Senator Matt McCoy (Democrat), who earlier this year introduced a bill to repeal and modernise the law, will be in attendance.  Although the bill didn’t make it out of subcommittee, he plans to reintroduce another in the legislative session that begins in January.

HIV is not a crime: Monday 15 Oct, 6:30pm at the First Unitarian Church of Des Moines,1800 Bell Ave, Des Moines, Iowa.

Globegazzette.com covered the last community forum, held in Mason City in September, in their story, ‘Groups call for revising HIV disclosure statute.’

The state of Iowa currently has one of the strictest HIV laws in the nation, making the lack of disclosure a Class B felony, punishable by up to 25 years in prison and a lifetime of sex offender status.

The statute makes no exception for lack of transmission of the HIV virus, nor does it take into account the fact that a person infected with HIV is taking the prescribed medication and has very little or no chance of passing it on.

Gay rights groups and others, including the Iowa Department of Public Health, are calling for modernization of the 1998 statute to focus penalties only on intentional or documented transmission of the HIV virus.

They say Iowa’s law is having the unintended effect of discouraging individuals from undergoing HIV testing and from obtaining access to medications that could save their lives and the lives of everyone with whom they may have intimate contact.

Iowa, which has a relatively low HIV incidence rate, ranks second in the nation in prosecutions for nondisclosure.

Pictured Left to Right: Iowa State Representative Sharon Steckman and State Senator Amanda Ragan, CHAIN community organizer and Sero Advisory Board Member, Tami Haught leading Iowa’s campaign to modernize the HIV criminalization law and Sero Advisory Board Member and Activist, Nick Rhoades at a community forum in Mason City on Iowa’s HIV Criminalization Law on Monday, September 10, 2012.

(Picture courtesy of The Sero Project)

Reproduced below is the press release from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network) announcing the Iowa HIV Community Planning Group vote and providing background to their advocacy.

HIV Community Planning Group Supports Repeal of Iowa HIV Criminlization Statute

Des Moines, September 25, 2012

In an historic move, the Iowa HIV Community Planning Group has voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalization statute.

Iowa, like most states, has a law that prohibits intentional transmission of communicable diseases. This statute, Iowa Code 139A.20 is part of public health code. HIV, however, is covered by a separate criminal code, Iowa Code 709C, which makes exposing someone to HIV without their consent a felony punishable by up to 25 years in prison. Repeal of 709C would allow HIV to be covered by the same public health code that governs other infectious diseases.

The National HIV/AIDS Strategy and the National Alliance of State and Territorial AIDS Directors has called for review of HIV criminalization statutes to bring them in line with contemporary science and knowledge about the real routes, risks, and consequences of HIV transmission. The Iowa Department of Public Health has echoed the call for review of the statute. In a letter to the editor of The Des Moines Register on July 29, Randy Mayer, Chief of the Bureau of HIV, STD, and Hepatitis, asked that HIV be treated in the same way as other serious infectious diseases.

“Testing and treatment are our best tools for fighting the epidemic in Iowa Research has now demonstrated that the statutes haven’t had the intended effect of promoting disclosure. We believe that our public health efforts will be more successful without having to fight the stigma that these statutes can create,” said Mayer.

“Having the prestige and expertise of the HIV Community Planning Group working to repeal Iowa’s criminalization statute is vitally important,” said Tami Haught, an HIV+ Nashua resident who is coordinating CHAIN’s statewide campaign to reform the Iowa statute. “The members of the CPG include some of the best-informed and most respected public health professionals and community advocates combating HIV We believe their recognition that the criminalization statute is hurting the public health will be persuasive with legislators.”

Iowa’s statute 709C imposes harsh penalties on persons with HIV who cannot prove they disclosed their HIV status in advance to sex partners. About 25 Iowans with HIV have been charged to date, with some convictions resulting in lengthy sentencing and lifetime sex offender registration requirements, even though HIV was not transmitted and there was little or no risk of it being transmitted.

The statute has been criticized by public health officials, legal experts, and patient advocates in Iowa and across the country as counter-productive, discriminatory, and contributing to further stigmatization of people with HIV. About 36 U.S. states and territories have HIV-specific criminal statutes Originally intended to slow HIV transmission, these laws were typically passed years ago when much less was known about HIV transmission A growing body of research shows how these statutes drive stigma, discourage testing, and are making the epidemic worse.

“HIV criminalization discourages people from getting tested—you can’t be prosecuted if you don’t know your HIV status—yet we know that most new infections are transmitted by people who have not yet gotten tested,” said Jordan Selha, co-chair of Iowa’s Community Planning Group “It’s time we treat HIV like other communicable diseases and use public health science rather than criminal law to guide our approaches to prevention No other disease is singled out as a criminal threat in this way.”

CHAIN has coordinated a statewide campaign to educate and mobilize communities to lobby lawmakers to review the statute when the legislature goes into session in January 2013. They have held community forums in Mason City and Ames.

You can help efforts to repeal the statute by contacting your state legislators and the governor’s office and asking that Iowa Code 709C be repealed. CHAIN will be holding an educational forum on October 15th at the First Unitarian Church of Des Moines and at Simpson College in Indianola on January 16, 2013.

The HIV Community Planning Group promotes, through an ongoing participatory process, effective HIV programming in Iowa in order to reduce the spread of HIV and to provide access to services for those infected. The Centers for Disease Control and Prevention (CDC) mandated community planning for HIV prevention in 1993. The process is designed to create a collaborative effort between public health and the communities they serve.

CHAIN is very excited to have the support of the Iowa HIV Community Planning Group. To join CHAIN’s listserve or get involved with CHAIN and the education and mobilization campaign, contact tami.haught2012(at)gmail.com, or follow CHAIN on Facebook.

Sweden: Majority of MPs want to reform HIV disclosure obligation and ‘HIV exposure’ criminal liability

Two articles commemorating 30 years of HIV in Sweden in Svenska Dagbladet by journalist Tobias Brandel suggest that public – and political – opinion is being positively impacted by a two-year campaign by RFSU (the Swedish Association for Sexuality Education), HIV-Sweden, and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) to raise awareness and advocate against overly-broad HIV criminalisation.

The first article, with the headline, ‘HIV-positive convicted harsher in Sweden‘ focuses on the fact that although HIV has been transformed from a fatal to a chronic disease, more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and ’90s combined.

The second, with the headline, ‘HIV-law divides Government’ highlights the fact that a majority of MPs want to revise both the Communicable Diseases Act (with its ‘information obligation’) and the criminal law that currently allows prosecutions for people with HIV for potential or perceived HIV exposure as well as transmission. However, there are divisions within both the coalition Government and the leading opposition parties.

Since these articles are the most up to date descriptions of the current moves towards law and policy reform in Sweden, I am including (in English via Google translate, with slight amendments for clarity) the full text of both articles below.

This is the Google-translated version, read the original article here

When Joakim Berlin received his diagnosis, HIV was a death sentence.

“The big question my relatives asked was when I was going to die. Of course, I thought it would go pretty quickly,” he says.

It was 1991, five years before the arrival of antiretroviral drugs. Today he leads a “totally normal” life.

“Sometimes I get side effects such as cramps and fatigue. But HIV’s biggest impact has been on my social life. Human ignorance is problematic. The fear is still there.” Neither legislation nor case law has followed the progress of medicine. Although HIV has been transformed from a fatal to a chronic disease more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and ’90s combined. Anyone who has HIV – and knows it – and has unprotected sex with another person is at risk of prosecution for ‘aggravated assault’, ‘attempted aggravated assault’ or ‘creating danger’.

The last year has seen four such convictions in Sweden,  according to a review by Svenska Dagbladet. All have resulted in prison sentences – even though they were not convicted of infecting their sexual partners. Only in one case was found to be HIV-positive plaintiff, but failed to clarify whether it was the offender who infected him.

A total of 44 people have convicted of crimes related to HIV since the late 1980s. This makes Sweden one of the countries in the world with the largest number of prosecutions in relation to the number of HIV-positive people, according to the Global Criminalisation Scan.

Sweden was also singled out as a bad example of how the law is used against people with HIV at the International AIDS Conference in Washington last summer. Even UNAIDS, the UN organisation for HIV / AIDS, criticises Sweden.

Ake Örtqvist, an infectious disease physician for Stockholm County Council, is critical of the Swedish court’s reasoning over risk and intent.

“The courts judge very differently which is very unfortunate. Courts and prosecutors should have an increased knowledge about the disease and the concept of risk,” he says.

Last year Denmark abolished a law that criminalises people with HIV referencing the current effective HIV drugs.

“The impact that treatment has in lowering viral load and infectiousness is very real, even if it is scientifically always hard to say zero. I think the courts reasoning is odd and they should embrace the fact that infection risk today is extremely small. One must ask whether it is reasonable to judge according to the Penal Code when the infection is well controlled and transmission has not occurred,” said Jan Albert, Professor of Infectious Disease at the Karolinska Institute. In other words, the virus is spread very rarely by “HIV-men” as the condemned is usually called in the media. The real vectors are people who do not know they have HIV and therefore do not receive treatment.

According to the Communicable Diseases Act HIV-positive individuals must inform their sex partners of their status before having sex. Although it is not possible to judge according to the Infectious Diseases Act so courts often refer to information obligations.

Both RFSL and RFSU argue that the law is actually counter-productive.

“Of course you should tell if you have HIV before sex, but you should not risk punishment if you fail to do so. Criminalisation can also lead to a false sense of security, to believe that the person who is not saying anything does not have HIV,” says RFSU President Kristina Ljungros.

She also believes that the prosecutions may deter people from testing. Even the UN-backed Global Commission on HIV and the Law concludes in a new report that criminalisation contributes to fewer people knowing their HIV status.

Preliminary data from a new U.S. study, received by Svenska Dagbladet, supports these ideas. The Sero Project, in collaboration with Eastern Michigan University interviewed more than 2000 HIV-positive individuals in the United States. Half of the respondents believe that it is reasonable to avoid HIV testing for fear of prosecution, and one in four say they know one or more individuals who chose not to test for fear of being prosecuted.

Joakim Berlin has lived with the virus for over 20 years and works at Positive Group West [part of HIV Sweden] as well as being a member of RFSL’s board.

“It is the responsibility of both parties to protect themselves, so you cannot have laws that criminalise only one party,” he said.

Is it not reasonable to tell your sexual partner so that he can make an informed decision?

“I have the responsibility to ensure that you do not get HIV, and you have the responsibility to ensure that you are not putting yourself at risk,” he says. “The law places full responsibility on the HIV-positive person while everyone else thinks that they can do whatever they want without consequences. Most people get HIV from someone who does not know their HIV-positive status.”

 

This is the Google-translated version, view the original here

Legislation and case law surrounding HIV has not kept pace with developments in medicine, as Svenska Dagbladet showed yesterday. Although modern HIV treatment reduces infectiousness dramatically, the law is the same as in the 1980s. There is now a majority in parliament who want a review of the Communicable Diseases Act, which forces people with HIV to disclose their status before having sex.

“We think that the issue should be revisited. Our knowledge about HIV is changing rapidly. We can not have laws that are outdated,” says Barbro Westerholm, Liberal Party social policy spokesperson.

As previously reported to Svenska Dagbladet both infectious disease doctors and scientists are critical of Swedish courts that sentence HIV-positive people to prison for unprotected sex, despite there being no alleged transmission. As well as revisiting the Communicable Diseases Act, the Liberal Party would  like there to be a review of judicial practice.

The position of the Moderate Party is that there is no need for such a review, but the Party is now in discussion.

“We have not changed our minds, but we’re talking about it. It is clear that we must keep up with new facts and analyses. There is a debate,” says Mats Gerdau, a member of the social committee [which would recommend such a review to the Government].

The Centre Party is open to an amendment of the Penal Code in respect of how the courts reason about intentional and negligent [states of mind] – but they are clearly against removing the Communicable Diseases Act’s notification requirement.

“There is an information obligation for all diseases that are generally hazardous. It is completely illogical to say that it should be removed only for HIV,” says Anders W Jonsson, chairman of the social committee.

The Christian Democrats see no need for any kind of review. All four Alliance parties must agree before the law can be reviewed. The [opposition] Social Democrats, The Green Party and the Left are all clear that they want the information requirements to be removed for HIV.

“The law is counterproductive. It places responsibility solely on the person with HIV. It is a repressive law which, at worst, means people do not get tested,” says Eva Olofsson (Left), also a member of the social committee.

Agneta Luttropp (Greens), another member of the social committee, believes that the law creates a false sense of security.

“The responsibility to protect is on both sides, on both the person who may have HIV and the person who does not. We hope and believe that a change in the law could lead to people being more invested in having protected sex,” she says.

However, the Social Democrats want to keep the information obligation and do not believe that judicial practice needs to be reviewed.

Change in Law on Epidemics will mean that HIV-positive individuals are not automatically criminals [in German]

HIV-Positive sind nicht automatisch Täter Das Parlament entschärft die Strafbarkeit bei Übertragungen von HIV. Die Aids-Hilfe Schweiz begrüsst den Entscheid, fordert aber eine weiter gehende Entkriminalisierung von Menschen mit HIV. Aids-Experten und Juristen kritisieren schon lange, dass das Strafrecht HIV-positive Menschen kriminalisiere.

Plenary Session 2: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)

Introduction by Co-chairs, Ton Coenen (HIV in Europe) and Lisa Power (Terrence Higgins Trust)
– Louis Gay (Norwegian HIV Patient Network): From accused to activist
– Kim Fangen (Norwegian Law Commission): Reforming the ‘HIV paragraph’ in Norway – lessons learned
– Matthew Weait (Professor of Law and Policy, Birkbeck College, University of London): Nordic advocacy research project – lessons learned
– Carsten Schatz (Board Member, DAH): DAH Position Paper – content and lessons learned
– Lucy Stackpool Moore (IPPF, London), Marielle Nakunzi (RFSU, Sweden) & Kevin Osborne (IPPF, London): ‘Criminalise Hate, Not HIV’: IPPF’s media strategy and advocacy approaches and lessons learned from Sweden
– Q&A / discussion

Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network

Plenary Session 3: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)

Workshop Summaries
– Susan Timberlake (UNAIDS): Workshop 1 – How to advocate for prosecutorial guidelines
– Holger Wicht (DAH): Workshop 2 – Better laws through science (Austria/Germany/Switzerland)
– Lucy Stackpool-Moore (IPPF): Workshop 3 – Filling the evidence gaps
– Peter Wiessner (EATG): Workshop 4 – Understanding and creating linkages between HIV criminalisation and punitive laws and policies affecting key populations

Q&A Session
– Ton Coenen (HIV in Europe, Netherlands)
– Nikos Dedes (EATG, Greece)
– Arwel Jones (Crown Prosecutions Service, England & Wales)
– Petra Bayr (Parliamentarian, Austria)
– Timur Abdullaev (EATG, Uzbekistan)

Next steps
– Silke Klumb (DAH)
– Peter Wiessner (EATG)
– Kevin Osborne (IPPF)
– Ton Coenen (HIV in Europe)

Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network

How to Fight HIV Criminalization in Courts of Law and Public Opinion | AIDS Ark

As the XIX International AIDS Conference (AIDS 2012) in Washington, DC, presented hopes of achieving an AIDS-free generation, some advocates focused attention on a major obstacle to this goal: the criminalization of people living with or at high risk for HIV.

Challenges & Changes to Law: Enabling Legal Environments in the HIV Response " NGO Delegation to the UNAIDS PCB

From the Global Commission on HIV and the Law, “Risks, Rights and Health” (note: this infographic does not include criminalization of non-disclosure). Click to enlarge.

Journalist Rod McCullom interviews Rep Barbara Lee about the REPEAL HIV Discrimination Act

Pop quiz: Which nation leads the world in the prosecutions of HIV exposure and/or transmission? Perennial human rights violators such as Russia, China, or dictatorships in the Middle East or Africa? Not even close. The surprising answer: The United States. In more than 60 nations it is a crime to expose another person to or transmit HIV.

Denmark: Man convicted in 2007 under now suspended law acquitted; further cases to be reviewed

A court in Denmark has acquitted a person living with HIV who had previously been found guilty under the country’s now-suspended HIV-specific criminal statute. The man’s sentence was reduced to six months, due to his conviction for other, drug-related, offences.

In its brief ruling, published below, the Eastern High Court reasoned that since there is now evidence that HIV is not a “life-threatening condition” he could no longer be guilty of exposing another to a “life-threatening illness”.

The Danish Justice Minister suspended the law in February 2011 noting that HIV can no longer be considered life threatening because, for people living with HIV in Denmark who are on treatment, HIV has become a manageable, chronic health condition.

According to sources in Denmark, it is believed that the courts are in the process of reviewing all HIV-related criminal cases from 2007 – this is the year that National Board of Health informed the Ministry of Justice that HIV was no longer a life threating illness (as defined in the law), even though it took the Ministry another four years to suspend the law.

This would make Denmark the first country in the world to fulfill the fifth recommendation relating to HIV criminalisation of the Global Commission on HIV and the Law.

2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.

 

 

Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012

Eastern High Court Prosecutor v. Jackie Madsen, 7 August 2012 (unofficial translation).

Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012

Transcript the Eastern High Court book of judgments

Verdict

Delivered on August 7th 2012 by the Eastern High Court’s 13th department

(country judges (names) with lay assessors)

…

Prosecutor v. Jackie Madsen

…

(Lawyer (Name)… )

Frederiksberg Legal verdict December 20th 2007 (…) is being appealed by the prosecution based on claim of acquittal of violation of Penal Code § 252 paragraph 2 (issue 2) and appeasement

Defendant has alleged alleviating circumstances.

High Court’s reasoning and result

Since HIV could not, at the time of the crime is crime, be considered a life-threatening illness according to the Penal Code § 252, paragraph 2, the defendant is acquitted for issue 1 in accordance with the prosecution’s claim on this matter.

As a result of this, the sentence is reduced to 6 months of imprisonment. In the decision of the sentence, the court has taken into account (put weight on) the amount of heroin and that the accused himself was a drug addict.

Moreover, the verdict is confirmed.

It is thus decided:

The District Court’s judgment in the case against Jackie Madsen is altered so that he is punished by imprisonment for 6 months.

The Treasury must pay the costs of the High Court.

(Sign.)

The accuracy of the transcript is confirmed. Eastern High Court…

US: Illinois modernises its HIV-specific criminal law

By Ramon Gardenhire (from AIDS Foundation of Chicago)

In my role as director of government relations for the AIDS Foundation of Chicago (AFC), I have to come to terms with the reality that the legislative process often means having to make ugly compromises.

This sentiment hit home this past legislative session, when the Illinois General Assembly passed a bill that would amend the state’s law that makes exposing someone to HIV a crime.

The Illinois criminal transmission of HIV law, on the books since 1989, has no basis in science, discriminates against people with HIV, and stigmatizes HIV.

AFC strongly opposes the law and fights for its repeal.  However, when it became abundantly clear that SB 3673 was going to pass with overwhelming support, we made a strategic decision to work the bill’s sponsor to minimize the legislation’s harm as much as possible.

We decided to make a bad law better.

SB 3673, introduced by Sen. Dale Righter (R – Mattoon) and sponsored in the House by Rep. Jim Sacia (R – Freeport) unanimously passed both chambers in the Illinois General Assembly. It amends the current HIV criminal transmission law to allow prosecutors to access medical records to learn if someone knew their HIV status, a fact that has to be established before an individual can be prosecuted.

This bill was a response to a tragic case in Whiteside County, Ill., in 2009, involving a man who allegedly knowingly exposed several women to HIV. The state’s strong HIV confidentiality law prevented police from accessing the suspect’s medical records to determine if he knew he had HIV. After charging him with 13 counts of criminally transmitting HIV to another person, the man was only sentenced with one count. There was no way to prove that he had knowingly exposed his partners to HIV.

We fear that the amendment to the law would deter individuals from testing for HIV because they could be prosecuted for criminal HIV transmission if they learn their status.  Earlier versions of the bill would have allowed access to social service agency and counseling records; AFC and allies were able to remove this provision, which would have had a chilling impact on testing and risk-reduction counseling.

AFC and our partners, ACLU of Illinois and AIDS Legal Council of Chicago, were able to negotiate significant changes to the underlying law in return for not working against the provision that allowed access to medical records.  The changes we made are below.  This bill:

1.    Requires that prosecutors prove that an individual specifically intended to transmit HIV to another individual  – This is an increased legal standard that prosecutors must meet and consider before bringing criminal charges.

2.    Limits acts of transmission to only “sexual activity without the use of a condom” – Prosecutors cannot charge individuals for activities that will not transmit HIV, such as biting or spitting.

3.    Defines the term “sexual activity” to include only sexual acts that include insertive vaginal or anal intercourse – This means no more criminal transmission cases for oral sex or kissing.

4.    Exemption from prosecution if a condom is wore during sexual activity – No more criminal charges if a person uses a condom.

Although the amended law significantly narrows the situations that could result in prosecution for criminal transmission, these cases are likely to always involve “he said he said” or “she said” cases that happen between the sheets with no witnesses.

It will be one person’s word against the other to determine if the couple used a condom and which sex acts they engaged in.  Cases will hinge on whether the infected partner disclosed his or her HIV status before having sex. Too often, former partners press charges for criminal transmission as retaliation when a relationship has soured.

The bill does include an important protection against prosecutorial abuse.  Judges must approve all requests for medical records, and the judge reviews records and determines if they are before they are turned over to prosecutors.  However, AFC and other advocates will remain vigilant to ensure that abuses do not occur.

The bill has been sent to Gov. Pat Quinn who will likely sign the bill into law.  According to the Center for HIV Law and Policy, 32 states and two U.S. territories have HIV criminal transmission laws.  The bill strikes an apprehensive compromise between HIV advocates and law enforcement. While the bill is an improvement, it still contains problematic sections.  AFC will continue to monitor the law once it is enacted, and look for opportunities to repeal it altogether.